Colon v. Crespo

223 A.D.3d 645

202 N.Y.S.3d 453

Donna L. COLON, plaintiff-appellant,

v.William CRESPO, Jr., respondent;

Jessica D. Sparacino, etc., nonparty-appellant.

2020–08557

Index No. 600321/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 2, 2023

January 10, 2024

Sparacino & Sparacino, PLLC, Northport, NY (Jessica D. Sparacino pro se of counsel), for plaintiff-appellant and nonparty-appellant.

Law Office of Dawn L. Hargraves, PLLC, Bay Shore NY, for respondent.

VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action for the partition of real property, the plaintiff and nonparty Jessica D. Sparacino separately appeal from an order of the Supreme Court, Suffolk County (John H. Rouse, J.), dated October 28, 2020. The order, insofar as appealed from by the plaintiff, (1) denied those branches of the plaintiff's motion which were to hold the defendant in civil contempt, to impose a sanction upon the defendant, and for an award of attorney's fees, and (2) granted that branch of the defendant's cross-motion which was for an award of attorney's fees to the extent of awarding the defendant the sum of $2,905, payable by the plaintiff and nonparty Jessica D. Sparacino, jointly and severally. The order, insofar as appealed from by nonparty Jessica D. Sparacino, granted those branches of the defendant's cross-motion which were for an award of attorney's fees to the extent of awarding the defendant the sum of $2,905, payable by the plaintiff and nonparty Jessica D. Sparacino, jointly and severally, and to impose a sanction, in effect, upon nonparty Jessica D. Sparacino, and directed her to pay a sanction to the Lawyers’ Fund for Client Protection in the sum of $250.

ORDERED that the order is modified, on the facts and as a matter of discretion, by deleting the provisions thereof granting that branch of the defendant's cross-motion which was to impose a sanction, in effect, upon nonparty Jessica D. Sparacino, and directing her to pay a sanction to the Lawyers’ Fund for Client Protection in the sum of $250, and substituting therefor a provision denying that branch of the cross-motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiff to the defendant.

The plaintiff and the defendant jointly obtained a mortgage and purchased certain real property located in Brentwood. In January 2017, the plaintiff commenced this action for the partition of the property. The parties executed a so-ordered stipulation of settlement (hereinafter the stipulation) dated December 18, 2019, in which, among other things, the defendant agreed to refinance the mortgage and to remove the plaintiff's name from the existing mortgage within 90 days of the execution of the stipulation, and the plaintiff agreed to immediately withdraw a notice of pendency filed by her against the property.

On August 18, 2020, the plaintiff moved, inter alia, to hold the defendant in civil contempt, to impose a sanction upon him, and for an award of attorney's fees on the grounds that he failed to refinance the mortgage and to remove her name from the existing mortgage as required by the stipulation. The defendant cross-moved for an award of attorney's fees and to impose a sanction upon the plaintiff and, in effect, her attorney, nonparty Jessica D. Sparacino, for making a frivolous motion which sought excessive attorney's fees. In the order appealed from, the Supreme Court, among other things, (1) denied the plaintiff's motion, determining that it was both without merit and frivolous in all respects, (2) granted that branch of the defendant's cross-motion which was for an award of attorney's fees to the extent of awarding the defendant the sum of $2,905, payable by the plaintiff and Sparacino, jointly and severally, and (3) granted that branch of the defendant's cross-motion which was to impose a sanction, in effect, against Sparacino, and directed Sparacino to pay a sanction to the Lawyers’ Fund for Client Protection in the sum of $250. The plaintiff and Sparacino (hereinafter together the appellants) separately appeal.

Contrary to the plaintiff's contention, the Supreme Court properly denied those branches of her motion which were to hold the defendant in civil contempt, to impose a sanction upon him, and for an award of attorney's fees. "A motion to punish a party for civil contempt is addressed to the sound discretion of the ... court" ( Chambers v. Old Stone Hill Rd. Assoc., 66 A.D.3d 944, 946, 889 N.Y.S.2d 598 ; see Bongiorno v. Di Frisco, 196 A.D.3d 452, 454, 151 N.Y.S.3d 413 ). The movant must establish that: (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) the movant was prejudiced by the offending conduct (see El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 ; see also Judiciary Law § 753[A][3] ). "Prejudice is shown where the party's actions ‘were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party’ " ( Bongiorno v. Di Frisco, 196 A.D.3d at 454–455, 151 N.Y.S.3d 413, quoting Matter of Figueroa–Rolon v. Torres, 121 A.D.3d 684, 685, 993 N.Y.S.2d 348 ). The moving party bears the burden of establishing contempt by clear and convincing evidence (see El–Dehdan v. El–Dehdan, 26 N.Y.3d at 29, 19...